BANASH v. STATE (2020)

Appellant, Bryan R. Banash, appeals the summary denial of his Motion for Postconviction Relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand ground six for either attachment of record documents conclusively refuting the claim or for an evidentiary hearing. In all other respects, we affirm.

In ground six, Appellant alleged that his trial counsel was ineffective for abandoning a pretrial motion to suppress statements Appellant made while he was in the hospital. Appellant further argued his trial counsel was ineffective for failing to preserve the motion to suppress for appellate review as part of Appellant's plea agreement. As nothing in the record conclusively refutes his claim that trial counsel failed to investigate and/or file a motion to suppress, it is not possible to determine whether defense counsel was ineffective in failing to ensure that the motion, which would be dispositive, was properly preserved for appeal. We therefore reverse and remand as to that portion of Appellant's claim. See, e.g., Merkison v. State, 1 So. 3d 279, 281 (Fla. 1st DCA 2009).

AFFIRMED in part; REVERSED in part; and REMANDED.

PER CURIAM.

HARRIS, GROSSHANS, and SASSO JJ., concur.